Weak Links in the Chain Migration Argument

Tuesday, February 20, 2018

The Issue

The term “chain migration” is currently being used to describe a process in which one legal immigrant can generate many new admissions by sponsoring his or her relatives — each of whom, in turn, leads to even more immigrants. President Donald Trump called for an end to “chain migration” in his State of the Union address on January 30, 2018, stating that: “…a single immigrant can bring in virtually unlimited numbers of distant relatives.” While immigrants admitted on the basis of family ties constitute the largest share of new permanent residents each year, the potential for an ever-expanding chain is constrained. Under current law, family-based immigrant visas are limited to a small number of categories of close relatives, many of which have numerical limits and are subject to caps by country of origin. As a result, there are long wait times, of years or even decades, for many family-based immigrant visas. Furthermore, family members are subject to extensive background and security checks, and financial support by U.S. residents must be established for them to obtain visas.

The Facts

The policies that regulate permanent legal immigration to the United States are currently organized around serving four main objectives: keeping families together, admitting immigrants that bring needed employment-based skills, addressing humanitarian purposes, and maintaining a diversity of countries of origin. This system was codified into law with the Immigration and Nationality Act of 1952 and the1965 Amendments to the Immigration and Naturalization Act, which eliminated the national origin quotas that had favored northern and western European countries. The number of legal permanent residents admitted each year has averaged roughly 1 million persons over the past decade. Family-based migration accounts for about two thirds of the new legal permanent residents admitted annually. In addition, roughly 140,000 legal permanent resident cards go to employment-sponsored immigrants and 55,000 are awarded via the diversity lottery each year. The number of refugees to be admitted on any given year is determined by the President in consultation with Congress. (See here for an overview of permanent legal immigration to the United States.)

The availability of family-based immigration visas varies based on whether the person petitioning for a relative is a U.S. citizen or a lawful permanent resident, as well as on the family relationship, age, marital status and country of birth of the prospective immigrant. There are two broad categories of family-based immigration visas: immediate relatives of a U.S. citizen and those that fall under a family-preference system (see table). There are no numerical limits to the visas available for spouses, minor children and parents of adult U.S. citizens (the first category). The second set of four categories under the Family-Preference Systemface numerical limits. Congress established a minimum of 226,000 for visas in the family-preference system to ensure that not all family-based visas go to the immediate relative category. In theory, if petitions for immediate relatives fall under 254,000, more visas would be available for the family-preference visas (up until both categories together add up to 480,000). However, petitions for immediate relatives have exceeded 254,000 every year since 1996, so family-preference visas have been effectively capped at 226,000 for the last two decades. The four categories included under family-preference are: 1st Preference, which includes unmarried adult children of U.S. citizens; 2nd Preference (Part A) which includes spouses and minor children of legal permanent residents (LPRs, that is, those granted the right to live permanently in the U.S., known as a “Green Card”); 2nd Preference (Part B) which include unmarried adult children of LPRs; 3rd Preference which includes married adult children of U.S. citizens; and 4th Preference which includes brothers and sisters of U.S. citizens. (See here for an overview of U.S. family-based immigration policy.)

In addition to numerical limits for family-preference visas, the share of visas that can go to any one country is limited. There can be no more than 7 percent of the visas in any of the family-preference categories going to people from one country; for example, there can be no more than 4,500 visas (7 percent of 65,000) for Mexicans applying as siblings of U.S. citizens in any one year.

Demand for family-preference visas exceeds the number of visas available and there are long wait periods for obtaining them — with wait times being substantially longer for certain countries. The substantial wait list means that wait times are very long. One way to gauge that is to consider the dates of initial applications that were being processed in January 2018. The final column in the table shows these dates for all countries but for China, India, Mexico and the Philippines as well as, in parentheses, the oldest dates for any country. The dates are country-specific because of country-specific limits on visas, as explained above. The dates of applications being processed in January 2018 range from almost 2 years for the spouses and minor children of permanent residents, to about 7 or 8 years for unmarried adult children of U.S. citizens and permanent residents, to about 14 years for married adult children and siblings of U.S. citizens. The oldest visa applications being processed in January 2018 go back to the mid-1990s for all preference categories but for spouses of legal permanent residents; for example, the visa applications finally being processed for siblings of U.S. citizens born in the Philippines were filed more than 23 years ago. Overall, State Department data shows 3.9 million family-preference based applications waiting for visas as of November 2017. These are not visa applications still to be processed, but rather petitions that have already been approved that are waiting for visas to become available.

Most of the family-based categories that are available for immigration require the sponsor to be a U.S. citizen. The naturalization process, which allows legal permanent residents to acquire U.S. citizenship, generally takes about five years — adding an additional time lapse to the wait times for permanent residents who would like to bring in a parent or a sibling. Many permanent residents who are eligible for naturalization do not pursue it. About 67 percent of immigrants who were eligible for U.S. citizenship in 2015 had naturalized according to estimates from the Pew Research Center.

There is an extensive process that a U.S. citizen or legal permanent resident must undergo to obtain an immigrant visa for a family member that also limits visa eligibility. Sponsors must show that the immigrants have adequate financial means and are not likely to rely on the U.S. government for financial support. People who wish to sponsor a relative must provide evidence they can financially support both their own family and that of the sponsored relative at an annual income generally no less than 125 percent of the federal poverty level (it is 100 percent for sponsors who are members of the Armed Forces). A U.S. citizen or legal permanent resident must petition for the visa, establish the legitimacy of the family relationship, show that they meet the income requirements, and submit a signed affidavit regarding financial responsibility for the person applying for the visa. Before they can be approved, the person applying for the visa is subject to extensive background and security checks and must also have an in-person interview at a U.S. Consulate overseas or at a U.S. Customs and Immigration Service field office in the United States.

What This Means

Under current immigration law, U.S. citizens or lawful permanent residents cannot directly obtain family-based visas for distant relatives; they cannot directly apply for a visa for a cousin, uncle, grandparent or other extended-family member. Statutory limits on family-preference categories, as well as substantial backlogs, severely limit family-based immigration, especially from countries like Mexico, China, India and the Philippines. Furthermore, the extensive screening process for family-based visas adds an additional hurdle — while seeking to ensure that immigrants are not a financial burden or a criminal or security risk and, in fact, immigrants commit fewer crimes than the native born and are not a significant fiscal drain on public finances. For all these reasons, it is very difficult to bring family members to the United States – the chain, to the extent that it exists, is short and difficult to forge.

Susan is a nationally recognized immigration lawyer. As Chair of Mintz’s Immigration Practice, she works with corporate clients to address their immigration challenges. Susan is very active in the American Immigration Lawyers Association (AILA) and has contributed to federal and state immigration regulations. She is frequently quoted in the media. She is also an editor of Mintz’s Immigration Law blog and has been recognized as a “Top Author” by JD Supra. Susan helped to lead a Mintz team that worked with the ACLU of Massachusetts and others to obtain a temporary...

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